McNulty v. Cooper , 3 G. & J. 214 ( 1831 )

Douse y, J.,

delivered the opinion of the court.

We think the County Court erred in refusing to grant the prayer of the appellant, as set out in his bill of exceptions. It is the duty of courts, when not restrained from doing so by some rule of law, to give to the acts, and agreements of the plaintiff and defendant, that interpretation which the common sense of mankind would impute to them ; and so to effectuate that interpretation, as to accomplish the design and intention of the parties, as far as it can be done, according to the established principles of law. Thus influenced, we cannot do otherwise than say, (in the absence of all proof to the contrary,) that the blank endorsement, and delivery of a bond by the obligee, invests the holder with the right of collecting, or suing for, in the name of the assignor, the money due on such bond, and of appropriating the same to his own use; or, as is stated in the prayer, that it is prima facie evidence of title to said bond in the assignee. So far from there being in this case any facts repelling this natural presumption, we regard them as strong in its corroboration, by shewing a probable valuable consideration for the transfer, and that the appellee, for three or four years, took no steps to repossess himself of the bonds, which in his declaration he alleges, were merely delivered to the appellant, to be returned on request ; and that during that period, McNulty, in a succession of payments, collected as his own, nearly the whole amount due on the bonds.

It has been alleged, that the prayer of the defendant below, was predicated upon an isolated part of the testimony, and that therefore, the court were justified in its rejection. If this position, as regards the law, were a sound one, the allegation, as to the fact, is not sustained by the record. The instruction was asked, not simply upon the facts enumerated, but upon those facts, when considered in connexion with all the other evidence in the cause. The argument was strongly urged too, that no title accrues to the assignee; that the claim of the plaintiff could not be resisted, but by its appearing that the transfer was made for a valuable consideration, of which no evidence had been offered. In considering this proposition, let it be conceded that no consideration passed; that the obligee made a gift of these bonds to the appellant. Does it thence follow, that he can maintain replevin, detinue, trover, or assumpsit, to recover the bonds themselves, or their value in damages; or can a general indebitatus assumpsit, be supported against the assignee, for the money he may have received under the assignment ? There is no principle, or analogy in the law, to authorise such a recovery. ’Tis true, that neither courts of law, nor of equity, will lend themselves to a donee, or assignee, to enforce an inchoate contract, not founded on a valuable consideration. But it is equally certain, that they will not lend their aid to a donor, or assignor in a case, where the contract has been consummated. He cannot reclaim by process of law, what he has given or assigned, where the gift or assignment has been perfected by possession. Having endorsed, and delivered the bonds, (of which delivery, the possession of the appellant is prima facie, sufficient evidence,) no action, either at law or in equity, can he maintained by the assignor for their recovery ; nor for the money which has been collected under the assignment From the view which we have taken of the testimony in this cause, we cannot approve of the instruction given to the jury. They were instructed, that they might draw conclusions, and infer facts, which the evidence before them was not legally sufficient, to warrant them in finding. Believing there is error in the County Court’s refusal to grant the prayer of the appellant, we reverse their judgment.

JUDGMENT REVERSED.